Owens v Owens judgment: 'huge setback' for divorcing couples and society as whole

Posted: 24/03/2017

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The Court of Appeal has today dismissed the appeal of a wife, Tini Owens, seeking to divorce her husband of 39 years, Hugh Owens, for his unreasonable behaviour.

Commenting on the judgment Simon Blain, a partner at Penningtons Manches and the treasurer of the national family lawyers association Resolution, said: “This is the most significant divorce case of the century so far. The overwhelming majority of family lawyers will be dismayed by the Court of Appeal’s judgment. It is a huge setback for divorcing couples and for society as a whole. The judgment will strengthen calls for Parliament urgently to consider amending the law to introduce no-fault divorce.

"People like Mrs Owens do not come lightly to the decision to end their marriage after 39 years. The decision that a marriage has broken down due to the 'unreasonable behaviour' of the other spouse must be a subjective one. What is tolerable to one person may not be to another. Behaviour that can be tolerable as a one-off occurrence may become unendurable if it is repeated over months and years.

"Society does not benefit if unhappy couples are compelled to stay together. Adults should be able to decide that they no longer wish to be married, without having to accuse their spouse of adultery or unreasonable behaviour. This judgment means that spouses like Mrs Owens, who have clearly decided their marriage is over, will be compelled to stay in their marriage for five more years, before they can petition without having to cite unreasonable behaviour.

"This case seems particularly sad as Mr Owens’ victory is entirely pyrrhic: he really wants his marriage to return to its previous happy state, and there appears no prospect that will happen.

"Divorce is emotionally draining for couples and children. It gets off to the worst possible start if couples feel they have to air their grievances in the divorce petition. Resolution has been campaigning for many years for the introduction of no-fault divorce.

"Unlike Mr and Mrs Owen, most couples agree that their marriage has broken down, and they know that the only way they can divorce swiftly and move on with their lives is for one to accuse the other of unreasonable behaviour. As a responsible family lawyer, I seek to minimise conflict by drafting particulars of unreasonable behaviour that are sufficient to persuade the court that the marriage has broken down, but are worded carefully so as not increase conflict unnecessarily. Where possible, these particulars are agreed with the other party before issuing the petition.

"There is also a real risk that, as a result of this judgment, a person seeking a divorce will feel compelled to exaggerate their spouse’s behaviour, in the hope of persuading a judge the marriage has broken down. There is a real risk that couples will resort to spying and deception as they seek to build up evidence to support their allegations of unreasonable behaviour, or to prove that their spouse has been unfaithful. The result will be that divorce becomes more stressful, more litigious and more expensive than it already is.

"As a family law specialist, and as a member of Resolution, I am horrified by the judgment. I hope that Parliament will now urgently consider the introduction of no-fault divorce, so that English divorce law can be brought into the twenty-first century.”

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